In affirming a rape conviction, the Fourth Department noted it was not necessary to apply the “prompt outcry” hearsay exception to the victim’s testimony about her own out-of-court statements because the statements were not hearsay. People v Curran, 1323, KA 08-01510 Fourth Dept. 2-1-13
Defendant went to trial before he pled guilty. On appeal he argued the court erred in admitting recorded conversations. The Fourth Department determined, by pleading guilty, the defendant forfeited his right to seek review of any nonjurisdictional defects in the proceedings, including issues arising from an audibility hearing and evidentiary rulings during trial. People vs Alvarado, 130, KA 11-02011 Fourth Dept. 2-1-13
Flight was not sufficient to justify police pursuit. A police officer had been shot in the afternoon. About eight hours after the shooting, uniformed officers approached the defendant as he was walking within a block or two of where the shooting occurred. The defendant said “What, we can’t go to the store?” turned his back, made a gesture toward his waistband, and ran. The police pursued him and saw him discard a handgun from his pocket as he was being tackled by an officer. The defendant subsequently pled guilty to criminal possession of a weapon. The Fourth Department reversed the conviction and vacated the sentence. “Flight alone … is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry …”. Because there were no “specific circumstances indicating that the suspect [was] engaged in criminal activity,” there was no “reasonable suspicion” of criminal activity, “the necessary predicate for police pursuit…”. People v Cady, 1427, KA 12-00337 Fourth Dept. 2-1-13
DeBour, street stops
The prosecutor’s violation of the trial court’s Sandoval ruling required reversal and new trial. Defendant was charged with rape. Prior to trial defendant sought a Sandoval ruling that he could not be cross-examined about a nine-year-old conviction for sexual abuse. The trial court ruled the defendant could not be cross-examined about the sexual abuse conviction because it did “relate to the two charges that are presently before the Court…” [and therefore could unduly prejudice the defendant in the eyes of the jury]. “The prosecutor, despite the court’s Sandoval ruling, asked a series of general questions regarding prior bad acts by defendant, and then questioned him specifically regarding the precluded prior conviction.” The prosecutor started the prohibited line of questioning by asking the defendant whether he was “a law abiding person,” to which the defendant replied that he had been “for the last three years.” The Fourth Department held that the defendant’s answer did not “open the door” to questioning about the sexual abuse conviction, noting that “a defendant opens the door to cross-examination concerning previously-precluded evidence where…’defendant’s testimony was meant to elicit an incorrect jury inference’…”. The Fourth Department stated unequivocally that the “People may not elicit a general statement by asking questions that violate the Sandoval ruling for the sole purpose of circumventing that ruling.” People v Snyder, 1370, KA 11-00316 Fourth Dept. 2-1-13
Request for a missing witness jury instruction must be made when it is learned the witness will not be called, not after the close of proof. Midstate Mutual Insurance Co vs Camp Road Transmission, Inc., 1462, CA 12-00961 Fourth Dept. 2-1-13
The board of managers of a condominium complex successfully challenged the town valuation of the property for real estate tax purposes. The town appealed and the Fourth Department affirmed (with two justices dissenting). The lengthy decision includes detailed discussions of the nuts and bolts of commercial property tax assessments, including the determination of the capitalization rate, the necessary documentation for an appraisal, the necessary qualifications for an appraiser, and the use of opinion evidence. In the Matter of French Oaks Condominium v Town of Amherst, et al, 1040, CA 12-00434 Fourth Dept. 2-1-13
An arbitrator’s interpretation of a collective bargaining agreement was vacated by the trial court. The Fourth Department reversed and confirmed the arbitration award. The decision includes a substantive discussion of the criteria that must be met before an arbitration award can be disturbed by a court. “[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable…”. An arbitrator’s interpretation of a contract may be set aside “only if the [arbitrator] gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties…”. Matter of the Arbitration between Professional, Clerical, Technical, Employees Association and Board of Education for Buffalo City School District, 1317, CA 12-01143 Fourth Dept. 2-1-13
There is no common-law cause of action for the negligent provision of alcohol. Under General Obligations Law section 11-100, liability for furnishing alcohol is triggered only if the person who unlawfully received the alcohol causes injury. In this case, a clerk in a convenience store sold alcohol to a 17-year-old with a fake ID who then shared the alcohol with friends. One of the friends became intoxicated and had an automobile accident, injuring the plaintiff. Because it was not the purchaser of the alcohol who caused the accident, General Obligations Law section 11-100 did not apply. Gutierrez vs. Devine, 1489, CA 12-01209 Fourth Dept. 2-1-13
A 19-year preindictment delay did not violate defendant’s speedy trial and due process rights. The charge was murder. The defendant was at liberty until indicted. The People established good cause for the delay in that the case was not ready to bring to a grand jury until the statements of three witnesses and DNA test results were obtained. The Fourth Department held that there was no need for a Singer hearing to determine the reason for the delay because there was no issue of fact with respect to the cause of the delay and the record provided County Court with a sufficient basis to determine whether the delay was justified. The admission of prior incidents of domestic violence against the victim (defendant’s wife) was proper because the evidence was probative of defendant’s motive, intent and identity. The defendant was not entitled to a circumstantial evidence charge because the admissions he made about killing his wife constituted direct evidence. People v Rogers, 1425, KA 11-00012 4th Dept. 2-1-13
Back in October, 2012, in a full-fedged opinion by Justice Peradotto, the Fourth Department reversed Supreme Court’s dismissal of a complaint brought by a shooting victim which alleged negligence, public nuisance and intentional-violation-of-gun-laws causes of action against the manufacturer, distributor and resellers of firearms. (Williams v Beemiller, Inc., et al, 100 AD3d 143).
Reargument was subsequently granted. After reargument, the Fourth Department amended its October opinion by adding a new section. Excerpts from the new section follow:
With respect to the common-law negligence cause of action, although “ ‘ [a] defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others’ “ …, “[a] duty may arise … where there is a relationship…between defendant and a third-person’s actions “ … . In Hamilton [v Berretta USA Corp., 96 NY2d 222], the Court of Appeals determined that no such relationship existed because the plaintiffs were unable to draw any connection between specific gun manufacturers and the criminal wrongdoers … . Here, by contrast, plaintiffs have alleged that defendants sold the specific gun used to shoot plaintiff to an unlawful straw purchaser for trafficking into the criminal market, and that defendants were aware that the straw purchaser was acting as a conduit to the criminal market. Thus, unlike in Hamilton, plaintiffs have sufficiently alleged that defendants “were a direct link in the causal chain that resulted in plaintiffs’ injuries, and that defendants were realistically in a position to prevent the wrongs” … .
Further [an] intervening criminal act does not necessarily sever the causal connection between the alleged negligence of defendants and plaintiff’s injury … . Rather, “liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant[s’] negligence” … . Here, plaintiffs allege that defendants… knowingly participated in the sale of 140 handguns, including 87 handguns in a single transaction, to [a] gun trafficking ring. We conclude that those allegations are sufficient to raise a question of fact whether it was reasonably foreseeable that supplying large quantities of guns for resale to the criminal market would result in the shooting of an innocent victim ….
We likewise conclude that the allegations in the complaint are sufficient to state a cause of action for public nuisance … . [P]laintiffs allege that defendants violated federal and state laws by selling guns to a straw purchaser, who funneled the guns into the criminal gun market, thereby posing danger to the general public, and that plaintiff was injured by one of those guns. Thus, plaintiffs have alleged that defendants engaged in unlawful conduct that endangered the lives of “a considerable number of persons” … and that plaintiff “ ‘ suffered special injury beyond that suffered by the community at large’ “ … .Williams v Beemiller, Inc., Motion No. 938/12, CA 11-02092 Fourth Dept. 2-1-13
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